Editor’s Note: Today we publish the 2016 Report on Indian constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.

—Jayna Kothari, Executive Director of the Centre for Law and Policy Research and Ashwini Tallur, Researcher at the Centre for Law and Policy Research

I. A Brief Introduction to the Indian Constitution

The Indian Constitution was adopted by a Constituent Assembly on 26 November 1949, came into effect on 26 January 1950, and has undergone 101 amendments since the adoption. Consisting of a Preamble, 448 Articles, 12 Schedules, and 5 Appendices, it is the longest constitution in the world. The Constitution defines fundamental rights of the citizens; prescribes their duties; establishes the structure, procedures, powers, and duties of government institutions; and sets out directive principles to the state.

The Preamble to the Constitution is a brief introductory statement that sets out the guiding purpose and principles of the Constitution. It is based on the Objective Resolution which was drafted and moved in the Constituent Assembly by Jawaharlal Nehru on 13 December 1946.[1] The Supreme Court has recognized that the Preamble may be used to interpret ambiguous areas of the Constitution.[2] The Constitution defines the Union of India and its Territory,[3] Citizenship,[4] enumerates the Fundamental Rights in Part III of the Constitution which are justiciable, sets forth the Directive Principles of State Policy in Part IV which are non-justiciable, and contains Fundamental Duties.[5] It also sets forth the machinery of the Union (Centre),[6] the States,[7] the Union Territories,[8] and Tribal Areas.[9] The Constitution includes provisions on local governing machinery like the Panchayats,[10] Municipalities,[11] and Co-operative Societies.[12]

II. Court and the Constitution

The Indian Supreme Court has developed the basic structure doctrine as a “novel and extensive doctrine of constitutional judicial review,”[13] and it is chiefly thanks to this development that the Constitution of India endures. The use of basic structure review is distinct from other forms of judicial review that the Court came to exercise. It assesses whether a state action “damages or destroys” basic features of the Constitution. The damage or destroy standard establishes a high threshold of constitutional injury for the Court to intervene.

The Indian Supreme Court has been extremely progressive in the protection of fundamental rights. It has expanded the scope of Article 21’s right to life over the years to include a whole range of social rights from the Directive Principles, which were considered not justiciable before. The right to life now includes the right to livelihood,[14] the right to health,[15] the right to education,[16] the right to food,[17] adequate housing, and the right to a clean environment.[18] The Court also developed a unique form of litigation called public interest litigation, relaxing the rules of standing to allow any public-spirited person or organization to litigate matters that bear on groups of people who are unable to access courts themselves to seek relief. While public interest litigation, or PIL as it is referred to, currently faces backlash it is still an important instrument for the protection of fundamental rights in the country.

III. Constitutional Controversies

One of the biggest constitutional debates of 2016 concerned the appointment of judges, which led to a constitutional crisis and a face-off between the executive and the judiciary.

Judges of the higher judiciary, namely High Court judges and judges of the Supreme Court, had been appointed by a collegium of the senior-most judges of the Supreme Court. The 99th amendment to the Constitution in 2014, however, introduced the National Judicial Appointments Commission Act (NJAC Act). The constitutionality of the NJAC Act was challenged in the Supreme Court. It was contended that the Act adversely affected the independence of the judiciary and affected the basic structure of the Constitution.[19] On October 16, 2015, a five-judge constitutional bench of the Supreme Court headed by Justice J.S. Khehar declared the National Judicial Appointments Commission along with the 99th Constitutional Amendment Act “unconstitutional and void,” thereby restoring the Collegium system.[20] The Court, however, did recognize the lack of transparency in the Collegium system and as a step towards improving the appointment of judges asked the government to submit a draft Memorandum of Procedure (MoP) for a reform.

This olive branch could have paved the way for genuine institutional reform of the Collegium system with greater transparency and executive/public participation.[21] Instead, the government did not approve any MoP and stalled pending appointments of 77 judges to the higher courts for over nine months. When the executive finally cleared the names of 34 judges after much public wrangling, all 34 names selected were from the subordinate judiciary who, on current evidence, decide fewer cases and are less likely to strike down legislative/executive action than advocates appointed from the Bar.[22] Following this, in November 2016, the Supreme Court Collegium returned the names of 43 candidates for an appointment to various high courts to the Union government for reconsideration. Under the applicable procedural rules, the executive was now bound to appoint these judges. But it has not yet appointed them, which affirms that the confrontation between the executive and the judiciary subsists.

The Union Government delayed the preparation of a MoP, as many believe, to dilute the primacy of the judiciary in the appointment process by tweaking the new Memorandum in favor for the executive. Moreover, the government has been stalling the appointment of judges in the face of escalating vacancies in the High Courts, and it remains to be seen if this conflict is resolved in 2017.

IV. Major Cases

A bulk of the decisions of the Supreme Court in 2016 concerned fundamental rights and freedoms. We review a few of the most important cases here.

(1)Subramanian Swamy v. Union of India and Others [(2016) 7 SCC 221]

Dr. Subramanian Swamy, a prominent leader of the Bharatiya Janata Party (BJP), made allegations of corruption against the Chief Minister of Tamil Nadu in 2014. The State of Tamil Nadu filed several criminal defamation suits against Dr. Swamy.

While there are civil remedies for defamation in India, defamation is also a criminal offense under Sections 499 and 500 of the Penal Code. In response to these criminal complaints, Dr. Swamy challenged the constitutionality of sections 499 and 500 of the IPC under Article 32 of the Constitution of India,[23] which allows any person to directly approach the Supreme Court to enforce her fundamental rights guaranteed by the Constitution. Politicians Rahul Gandhi, Arvind Kejriwal, and a few journalists who had been charged with criminal defamation joined Dr. Swamy in the challenge, arguing that sections 499-500 of the Code inhibit the freedom of expression.[24]

Article 19(1) (a) of the Constitution[25] provides the right to freedom of speech and expression to every citizen of the country. However, this right is subject to reasonable restrictions that can be imposed by the State in the interests of the “sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offense.”

To decide whether the criminal offenses of defamation amounted to a violation of the right to freedom of speech and expression, Justice Dipak Mishra of the Supreme Court first made a comprehensive analysis of the term “defamation” and the concept of “reputation.” He relied on the Universal Declaration of Human Rights 1948 and the ICCPR which both protect the right to free speech and the right to reputation. The SC further built on comparative case law to understand the concept of reputation as a part of the basic right to life and dignity, specifically referring to the Canadian Supreme Court decision Hill v. Church of Scientology of Toronto;[26] the South African decision Khumalo v. Holomissa;[27] and on Karako v. Hungary[28] where the European Court of Human Rights recognized that the freedom of speech may be restricted to protect reputation.

Interpreting the right to freedom of speech and expression, the Supreme Court held that notwithstanding the expansive and sweeping ambit of freedom of speech it is not absolute and may be subject to reasonable restrictions, as any other right. On the other hand, the Court held that the right to honor, dignity, and reputation are constituents of the right to life, in line with is previous decisions. The Court concluded that although freedom of speech and expression is inviolable, it is subject to reasonable restrictions and held that Sections 499 and 500 of the Indian Penal Code could not be called unreasonable for they are neither vague nor excessive nor arbitrary.

The Court emphasized the balance of fundamental rights, observing that no right is absolute. Fundamental Rights are equal and one cannot be preferred to another, because they exist in concord and not in watertight isolation. The Court held that in a case where two Fundamental Rights clash, the right which better promotes public interest must be upheld. It held that if a law limits constitutional rights, such limitation is constitutional if it is proportional.

The petitioner in this case was a retired government employee who filed a petition under Article 32 to the Supreme Court, advocating respect to the National Anthem under the provisions of the Prevention of Insults to National Honour Act, 1971. The petition claimed that the National Anthem was often sung in impermissible circumstances, that necessary respect was not accorded to the Anthem when sung, played, or being recited, and it is the duty of every person to show respect to the National Anthem.

The Supreme Court Bench, consisting of Justice Dipak Mishra and Justice Roy, passed an interim order detailing several controversial directions. The Bench held that there shall be no commercial exploitation or dramatization of the National Anthem. That it should not be included as a part of a variety show, shall not be printed on any object, and never displayed in a manner and such places that are tantamount to disrespect. What is more, the Bench also gave unprecedented directions to citizens on what they should do when the National Anthem is played. Some of the directions read as follows:

All cinema halls in India shall play the National Anthem before the feature film starts and all present in the hall are obliged to stand up to show respect to the National Anthem.

Before the National Anthem is played or sung in a cinema hall on the screen, the entry and exit doors shall remain closed so that no one can create any disturbance which could disrespect the National Anthem. After the National Anthem is played or sung, the doors can be opened.

When the National Anthem shall be played in cinema halls, it shall be with the National Flag on the screen.

The abridged version of the National Anthem made by anyone for whatever reason shall not be played or displayed.

What was also controversial was that the Supreme Court went on to hold that these directions were issued so that love and respect for the motherland are reflected by showing respect to the National Anthem and National Flag and to instill in citizens the feeling of patriotism and nationalism. The Court relied upon clause (a) of Article 51A of the Constitution and held that it is the sacred obligation of every citizen to abide by the ideals engrafted in the Constitution and that they are duty-bound to show respect to the Anthem, which is the symbol of constitutional patriotism and inherent national quality.

While there is no doubt that respect to the National Anthem should be showed, the mandatory screening of the National Flag and playing of the National Anthem in all cinema halls before every film is hugely problematic. This judgment was subsequently twice clarified so that individuals with disabilities need not stand while the National Anthem was played. This clarification was sought because this judgment was being implemented with such fervor in cinema halls that persons unable to stand were seriously threatened. It has been subject to substantial criticism whether the Supreme Court can force feelings of patriotism, and whether enforced display of the National Flag and the Anthem is required for the same.

(3) Parivartan Kendra v. Union of India [(2016) 3 SCC 571]

This decision was passed in a public interest litigation filed by an NGO, Parivartan Kendra, seeking compensation and redress for two Dalit sisters, Chanchal and Sonam, who fell victim to a brutal acid attack. The two sisters were not given adequate treatment after the acid attack and were ill-treated at the hospital due to their caste. It was only after they were taken to Delhi that they received adequate treatment. The PIL sought directions from the Supreme Court that would help secure justice, compensation, and dignity for all acid attack survivors, including the development of a rehabilitation scheme and an increase in compensation to victims of acid attacks. It also sought that acid attacks be included as an offense within the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Allowing the petition, the judges referred to directions given by the Supreme Court in a previous decision on compensation for victims of acid attacks in Laxmi v. The Union of India,[29] in which the Supreme Court, in addition to banning the over-the-counter sale of acid, had also directed that State governments provide a minimum amount of Rs. 3 Lakhs as compensation to each acid attack victim under Victim Compensation Schemes. While the Supreme Court in the present case acknowledged that there was no proper implementation of regulations or control for the supply and distribution of acid, it did not issue further guidelines in this regard. It focused on compensation and held that Laxmi mandated only a minimum compensation of Rs.3 Lakhs. The State government has the discretion, however, to provide more compensation to the victim in the case of acid attack as per the guidelines.

In the instant case, considering the expenses already incurred by the victims’ family, the Court directed that Chanchal be paid compensation of Rs. 10,00,000/- and her sister be paid compensation of Rs. 3,00,000/- by the State government and further that the State government be responsible for their entire treatment and rehabilitation. This compensation was awarded not only regarding the physical injury but also considering the victim’s inability to lead and enjoy wholesome lives because of the acid attack. In addition to the increased compensation, the Supreme Court passed a few general directions:

State governments should take up the matter with all private hospitals in their States to not refuse but provide full treatment to acid attack victims, including medicines, food, and reconstructive surgeries.

Hospitals should issue certificates that the person is a victim of an acid attack so that she may get benefits of schemes for reconstructive surgeries and compensation.

This judgment of the Court was progressive in stressing the plight of acid attack victims to justify the need for enhanced compensation. It tried to highlight the social stigma that victims face, the difficulty they have in obtaining employment, and the tremendous medical expenses they incur towards the lifelong treatment of their injuries. The Supreme Court stated that such enhancement of compensation will not only help the victim secure medical treatment but will also motivate the State to strictly implement the guidelines so that acid attacks are prevented in the future.

In an important direction, the Supreme Court also directed all States to take steps to include acid attack victims’ names on the disability list. This recognizes the life-long consequences that acid attack victims face, as was effectively pointed out by the Court, and would also enable them to rights and entitlements under the law relating to persons with disabilities.

(4)Devika Biswas v. Union of India [AIR 2016 SC 4405]

Devika Biswas was an activist who filed this petition after a mass sterilization camp in the Araria District of Bihar. The camp was carried out on January 7, 2012, by a single surgeon where 53 women were operated on within the period of just two hours from 8 pm to 10 pm, in a school. The women were operated on atop school desks by the surgeon, who used just a single set of gloves with the aid of only a torch-light, and without the facility of running water. There was no provision of pre-operative and post-operative care, or even counseling, that would inform the women of the permanent nature of sterilization or its side effects. The petition also reported on many other sterilization camps that had taken place in other States where none of the procedures laid down by the government were followed. Devika Biswas asked for a series of directions including the setting up of a committee to investigate the facts relating to this sterilization camp and to initiate departmental and criminal proceedings against those involved. She also prayed that the government guidelines be scrupulously adhered to so that such incidents do not recur in any part of the country and that additional compensation will be paid to the women. The PIL highlighted the conduct of mass sterilization in highly unsanitary conditions in the States of Kerala, Madhya Pradesh, Maharashtra, Chattisgarh, and Rajasthan.

The Supreme Court relied on the case of Ramakant Rai (I) and Anr. v. Union of India and Ors,[30] in which it had prescribed detailed guidelines and procedures to be adhered to in the conduct of sterilizations. The Court directed the Union government during the hearings to report on the implementation of each direction given in Ramakant Rai and the details of the utilization of funds under the Family Planning Indemnity Scheme, 2013. The various State governments were also asked to file affidavits that explained the extant situation in their States.

In response to these directions, Chattisgarh provided a Status Report on the progress made by the “Anita Jha Committee” that was set up to address the deaths caused by the sterilization camp in Bilaspur. Bihar accepted the failure of the sterilization camp and that it had issued show-cause notices to the relevant persons in charge of the camp. While the State of Madhya Pradesh did not deny the conduct of sterilizations, it claimed that these were performed under informed consent and after review of cases by the State Quality Assurance Committee. Rajasthan stated that standard operating procedures were being followed and Kerala and Maharashtra did not submit any substantial reports. The Union of India proposed phasing out sterilization camps over the next three years and submitted that Tamil Nadu, Maharashtra, Sikkim, and Goa, as well as Chattisgarh, have phased out sterilization altogether.

Finally, the Supreme Court in its judgment lamented the lack of a health policy in the country, which could address these concerns. It disagreed with the Ministry of Health and Family Welfare’s position that Public Health comes solely under the purview of the State Government. The Court pointed out that Entry 20A of the Concurrent List pertains to “Population Control and Family Planning” over which the Union has superior powers of legislation:[31]

If the sterilization program is intended for population control and family planning (which it undoubtedly is) there is no earthly reason why the Union of India should refer to and rely on Entry 6 of the State List and ignore Entry 20A of the Concurrent List. Population control and family planning has been and is a national campaign over the last so many decades. Therefore, the responsibility for the success or failure of the population control and family planning program (of which sterilization procedure is an integral part) must rest squarely on the shoulders of the Union of India. It is for this reason that the Union of India has been taking so much interest in promoting it and has spent huge amounts over the years in encouraging it. It is rather unfortunate that the Union of India is now treating the sterilization program as a Public Health issue and making it the concern of the State Government. This is simply not permissible and appears to be a case of passing the buck.

While the sentiment of the Court that sterilization should be treated as a subject under the competence of the Union Government is a fair argument since the federal executive has more effective powers, the Court’s observation that reproductive treatments such as sterilization would not be a public health issue is of serious concern. Unless violations of reproductive rights are not treated as important public health violations, they will never be given priority.

The Court held that the concerned sterilization procedures endanger the right to life under Article 21 of the Constitution, which included the right to health and reproductive rights. It relied on C.E.S.C. Limited and Ors v. Subhash Chandra Bose,[32] which has interpreted the “right to health” as an aspect of social justice informed by both Article 21 of the Constitution as well as the Directive Principles of State Policy, and international covenants to which India is a party. The Court also relied on Suchita Srivastava v. Chandigarh Administration[33] in holding that the exercise of reproductive rights would include the right to make a choice regarding sterilization by informed consent and free from any form of coercion. Finally, the Court also referred to a decision of the Committee on the Elimination of Discrimination Against Women (CEDAW) in A.S. v. Hungary,[34] expounding the CEDAW Convention, and held: Compulsory sterilization…adversely affects women’s physical and mental health, and infringes the right of women to decide on the number and spacing of their children. The Court issued the following directions:

That the Ministry of Health and Family Welfare should display on its website a full list of approved doctors and their particulars in each State, District and Union Territory.

A checklist should be prepared under the directions in RamakantRai that explains the impact and consequences of the sterilization procedure along with signatures by the concerned doctor as well as of a trained counselor certifying that the proposed patient has been explained the contents of the checklist and has understood its contents as well.

Sufficient time of about an hour needs to be given to a patient to accommodate a change of mind.

Preparation of an annual report, in addition to the six-monthly reports required, to be published by the State Quality Assurance Committees containing details on the number of persons sterilized as well as the number of deaths or complications arising out of the sterilization procedure.

Strengthening of the Primary Health Care centers across India and efforts to ensure that sterilization camps are discontinued as early as possible.

The need to ensure that informal or formal targets towards sterilization are not fixed by States, allowing health workers and others to compel persons to undergo forced sterilization merely to achieve these targets.

The Court expressed its displeasure with the inadequate responses of Madhya Pradesh, Maharashtra, Rajasthan, and Kerala regarding the sterilization camps and specifically directed the Chief Justices of these States to initiate a suo motu public interest petition to consider the allegations that had been made against them and directed the States of Bihar and Chattisgarh to speedily and efficiently conclude their investigation into the sterilization tragedies.

To announce a National Health Policy at the earliest, keeping in mind issues of gender equity.

V. Conclusion

The Supreme Court seemed to speak in different voices in the year 2016. It gave fundamental rights such as the freedom of speech a very narrow interpretation. But some benches of the Court penned broad and expansive directions on the reproductive rights of women and rights to compensation, treatment, and rehabilitation of acid attack survivors. One could question whether the Supreme Court interprets rights consistently.

It is also important to note that the judiciary has vehemently protected its autonomy, even though this attracted severe criticism for a lack of transparency. The perceived threat to the independence of the judiciary seems to eclipse the need for a change and participation in the judicial appointment process. Their steadfast protection of judicial autonomy indicates that courts tend to preach accountability without practicing it.

[20] The collegium system evolved after three landmark judgments of the Supreme Court, known as the “three judges cases”: the first, second, and the third judges cases. A collegium, consisting of the Chief Justice of India and 4 other senior-most SC judges, made recommendations for persons to be appointed as SC and HC judges, to the President.

[23] Article 32 allows the Petitioner to move the Supreme Court to enforce her Fundamental Rights

[24] Criminal proceedings against the petitions had been stayed pending the constitutional challenge

[25] Article 19. (1) (a) All citizens shall have the right to freedom of speech and expression

[26] [1995] 2 SCR 1130 (holding that a good reputation is closely related to the innate worthiness and dignity of an individual and an attribute that must, just as much as freedom of expression, be protected)

[27] [2002] ZACC 12; 2002 (5) SA 401 (stating that law of defamation seeks to protect the legitimate interest individuals have in their reputation, which supports the value of human dignity, but that it needs to be balanced with the protection of free speech)

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